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Wurtzel v. Werres

Decided: May 31, 1985.

LORRAINE FAY WURTZEL, EXECUTRIX OF THE ESTATE OF ERWIN WURTZEL, ON BEHALF OF THE ESTATE OF ERWIN WURTZEL AND ON BEHALF OF THE HEIRS-AT-LAW OF ERWIN WURTZEL, PLAINTIFF-APPELLANT,
v.
ROLAND WERRES, M.D. AND SANJEEV SAKSENA, M.D., DEFENDANTS. IN THE APPLICATION OF MEDVIN & ELBERG, ESQS., FOR FEES PURSUANT TO R. 1:21-7(F), APPLICANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiff Lorraine Fay Wurtzel, Executrix of the Estate of Erwin Wurtzel, appeals from an order of the Law Division that awarded her attorneys, applicants Medvin & Elberg, an increased attorney's fee in excess of the contingent fee provided for in their retainer agreement and allowed by R. 1:21-7(c) pursuant to the provisions of R. 1:21-7(f). Plaintiff contends that the trial court mistakenly exercised its discretion in awarding the increased fee in that the fee provided by the retainer agreement was adequate and there was no evidence that the work performed by Medvin & Elberg was unusually difficult, time consuming or unique for a medical malpractice death case. Plaintiff also charges that her attorneys did not keep time records which would support an increase in the fee provided by the retainer agreement and that they concealed from her their "intent to seek a higher fee until after she authorized the settlement."

The medical malpractice action which formed the basis for the attorney's fee arose out of the death of plaintiff's husband, Erwin Wurtzel (Wurtzel). On January 16, 1982 Wurtzel was admitted to Newark Beth Israel Medical Center for a cardiac catheterization and cardiac electrophysiological studies. Defendant Roland Werres, M.D. was the attending physician and defendant Sanjeev Saksena, M.D. performed the electrophysiological studies. As part of the electrophysiological studies Dr. Saksena inserted a catheter into the vein under Wurtzel's right collar bone. As intended, the catheter remained in place for several days. Plaintiff based her malpractice complaint on the theory that Wurtzel developed an infection from this catheter that went unrecognized, undiagnosed and untreated by both doctors and that this failure by the doctors caused an infected or mycotic [any disease caused by the presence of fungi]

abdominal aortic aneurysm which required an emergency resection [removal of a segment] on February 18, 1982. Wurtzel died during this emergency surgery.

In December 1982 suit was instituted. According to the affidavit of Alan Y. Medvin, Esq. (Medvin), the partner in the firm of Medvin & Elberg, who was "solely responsible for handling this litigation from its inception," he, among other things, searched out and retained highly qualified medical experts, surgeons who had never acted as experts in a medical malpractice case; retained an economist to act as an economic expert for the measure of damages; reviewed in detail the medical expert's report; prepared and filed various motions to compel the deposition of defendant Werres, to compel production of defendants' experts' reports and to bar expert testimony on behalf of defendants for failure to supply expert reports as ordered by the court; prepared for, and attended plaintiff's, defendants' and the experts' depositions; received Saksena's expert's report concerning Wurtzel's life expectancy and had his own expert evaluate same; attended pretrial and settlement conferences; received and reviewed Werres' medical expert's report which raised for the first time the proximate cause defense that the source of the infection was the intravenous line which had been inserted in Wurtzel's left hand; located an outstanding expert in the area of infectious diseases to refute this defense; reviewed and indexed the deposition transcripts and defendants' interrogatory answers; designed graphic exhibits; prepared plaintiff's experts for trial; met with plaintiff and reviewed all aspects of the upcoming trial; drafted proposed jury instructions, voir dire questions and proposed verdict forms; attended a settlement conference; read in detail five medical articles totaling 41 pages and read chapters in medical treatises concerning applicable topics; spent 6 days preparing his opening statement; and finally reached settlement on the eve of trial in May 1984.

The suit was settled for $337,500. Disbursements in the case totaled $6,395.75, resulting in a net recovery for purposes of fee

computation of $331,104.25. The retainer agreement provided for a contingent fee to be computed on the basis of the percentages set forth in R. 1:21-7(c). Under that agreement and in accordance with the rule, the maximum fee on the net recovery of $331,104.25 was $67,557.09.*fn1 The agreement, however, also reserved to the attorneys "the right, pursuant to R. 1:21-7(f) to make further application to the Assignment Judge on written notice to the client for an additional fee should the attorney, at the conclusion of the matter, deem the fee provided for by this arrangement to be inadequate." Pursuant to that provision and R. 1:21-7(f) Medvin & Elberg applied for an award of one-third of the net recovery. This application was supported by the affidavits of Medvin and his partner Philip Elberg, Esq. Plaintiff retained counsel to represent her and filed affidavits in opposition to the request for an increased attorney's fee. The trial court, following argument, granted the application and awarded Medvin & Elberg an increased fee of $97,500.00. Although the trial court found nothing unusual about the case from a legal standpoint, it awarded the increased fee, reasoning in part, that:

I'm satisfied that although this was not an unusual malpractice case from a legal point of view, that factually [it] was one which required an intense amount of work. Mr. Medvin has vividly painted the pictures that would have framed the issues had this case gone to trial and the Court has taken notice of the fact that it has not gone to trial.

Therefore, the work of a lawyer is not only in a courtroom. Indeed, case preparation is the one most important aspect of the trial lawyer's work. Mr. Medvin obviously knowing that the factual and medical issue was going to be complicated and knowing of the fact that the credibility of experts are affected by the ability of counsel on cross examination to elicit that they are in court, day in and day out testifying on behalf of a party undertook and did locate two experts who were new to the field of testimony and therefore would presumably receive much more credibility on the part of the plaintiff. Obviously, ...


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